R. v. Moiz, 2015 ONCJ 40

COURT FILE NO. Brampton/13-012354 DATE: 2015-01-28 Citation: R. v. Moiz , 2015 ONCJ 40 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - ABDUL MOIZ Before Justice James Stribopoulos Heard on January 22, 2015, Reasons for Judgment released on January 28, 2015. Ms. Lia Di Giulio………….………..………….…….…..…………….……… … for the Crown Mr. Sukhwant Baidwan .……………………………………..….…….…... for the Defendant STRIBOPOULOS, J.: I. Introduction [ 1 ] The defendant, Abdul Moiz, is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit, contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] The trial of this charge proceeded rather expeditiously due to a number of concessions by the defence.

There are only three live issues that I must resolve in order to decide this case: first, there is the defendant’s failure to object to the admissibility of breath testing results when proffered or to file a Charter application before trial in that regard and whether or not that should foreclose the application from being decided on its merits; second, if the substance of the Charter argument is addressed, the question presented is whether the arresting officer had the requisite grounds to make an approved screening device breath demand; and finally, there is a dispute as to whether or not the breath samples taken for analysis by an approved instrument were taken “as soon as practicable” so as to permit the Crown to rely on the presumption of identity in order to prove its case.

Before addressing each of these issues, a brief recitation of the relevant facts is necessary. II. The Facts [ 3 ] Early on the morning of September 12, 2013 Constable Chakravarthy followed the defendant’s car as it sped northbound on Tenth Line in the City of Mississauga. By pacing the defendant, the officer determined that he was travelling 92 kilometres an hour in a posted 50-kilometre an hour zone. After querying the defendant’s license plate, the officer decided to stop him for speeding.

As a result, just north of Britannia Road, Constable Chakravarthy directed the defendant to stop his car and he did so without incident. The time was 1:32 a.m. [ 4 ] The defendant was alone in his car. As the officer spoke to him, explaining the reason for the stop, he noted that the defendant’s eyes appeared to be watery and that he seemed unable to maintain eye contact. In addition, when the officer leaned into the vehicle, he noted the faint odour of an alcoholic beverage emanating from inside the car. At this point, the officer asked the defendant if he had anything to drink before driving that evening.

After a pronounced pause of about two seconds, the defendant denied that he had been drinking anything. Based on this collection of circumstances, the officer testified that he formed a suspicion that the defendant was operating “a vehicle on a highway having consumed an alcoholic beverage”. After inspecting the defendant’s license, the officer asked him to accompany him back to his police cruiser for the purpose of administering a roadside breath test.

That request was made at 1:38 a.m. [ 5 ] Constable Chakravarthy testified that he conducted a “cursory” search of the defendant for weapons before placing him in the rear of his police cruiser. By then, it was 1:40 a.m. Once the defendant was secure in the back seat of the cruiser, the officer read him the formal approved screening device demand. He then began readying the device for use. The approved screening device had been recently calibrated and was in proper working order.

When asked when he most recently consumed alcohol, the defendant reported since before 6:00 p.m. the preceding evening, eliminating any concerns on the part of the officer regarding the potential impact of mouth alcohol on the reliability of the test results.

[ 6 ] By 1:48 a.m. the device was ready and the defendant furnished a breath sample. The sample registered an “F”. This meant that the concentration of alcohol in his blood was over 100 milligrams of alcohol per 100 millilitres of blood. Given this result, Constable Chakravarthy formed the opinion that the defendant was operating a motor vehicle with a blood alcohol level in excess of the legal limit.

As a result, at 1:48 a.m. the officer told the defendant that he was under arrest for that offence. [ 7 ] Constable Chakravarthy next contacted his dispatcher in order to advise that he had someone in custody and to make arrangements for a qualified technician to conduct further testing once the defendant was taken back to the police division. In addition, the officer also requested a back-up unit and a tow truck. Thereafter, Constable Chakravarthy testified that he began to apprise the defendant of his rights to counsel and the common law cautions.

After that, at approximately 1:51 a.m., the officer read the approved instrument demand to the defendant. [ 8 ] Constable Chakravarthy testified that because of concerns for his own safety and that of the defendant, he decided to leave him secured in the rear of the police cruiser until back-up arrived. In terms of his own safety concerns, the officer explained that the defendant was not handcuffed and that protocol required that he be so while being transported.

Given that the officer was not acquainted with the defendant and had just advised him he was under arrest, he worried that if he removed him to handcuff him he might respond aggressively. Similarly, the officer noted that Britannia Road was close by and should the defendant try to flee he worried that a passing vehicle could hit him. [ 9 ] During his testimony, Constable Chakravarthy also gave evidence that at around 1:48 a.m., as the defendant was seated in the rear of the police cruiser and was being apprised of his right to counsel, a friend of the defendant just happened to come by and approached them.

The friend asked if he could speak to the defendant and the officer told him that would not be possible. With the defendant’s approval, the officer told his friend where the defendant would be taken (that individual ultimately arranged for the defendant’s parents to pick him up from the police division after his eventual release from custody later that morning). [ 10 ] Constable Chakravarthy described the defendant as being both polite and cooperative throughout his dealings with him.

Further, although the officer testified that he was initially startled when the defendant’s friend approached the police cruiser, as he did not notice him until he was standing at his window, he did not suggest that the friend’s presence or behaviour gave rise to any safety concerns. [ 11 ] Constable Chakravarthy initially testified that back-up did not arrive until 2:09 a.m., but later changed his testimony and explained that a back-up unit was on scene at 2:00 a.m. It was the tow-truck that arrived at 2:09 a.m. It was only at that point that Constable Chakravarthy finally left the scene with the defendant.

The time was 2:10 a.m., nearly forty minutes from when the defendant was initially stopped. [ 12 ] The defendant was transported to 11 Division, arriving there at 2:21 a.m. Once at the division he was subject to the routine processing that all prisoners undergo. He also asked to speak with duty counsel. That request was accommodated, and he spoke to duty counsel from 2:38 a.m. until 2:44 a.m. [ 13 ] The defendant was turned over to a qualified breath technician at 2:46 a.m.

According to that qualified technician’s certificate, which was filed as an exhibit at trial, the defendant ultimately provided two breath samples. The first was at 2:57 a.m., and the second at 3:19 a.m. Each of the samples registered a reading of 160 milligrams of alcohol in 100 millilitres of blood. III. The Positions of the Parties [ 14 ] During its case the Crown introduced into evidence the certificate of the qualified technician. It did so without any objection from the defence.

However, during final submissions the defendant attempted to argue that Constable Chakravarthy lacked the required grounds under section 254(2) (

b) of the Criminal Code to make an approved screening device breath demand, i.e. reasonable grounds to suspect that the defendant had alcohol in his body while driving.

According to the defendant, this deficiency should result in the exclusion of the certificate proffered by the Crown. [1] (It was apparent that defence counsel did not appreciate his obligation to object either before or at the time when the certificate was being proffered or that because his objection was prefaced on Charter grounds that it should have been preceded by serving and filing a notice of application). [ 15 ] If permitted to address his Charter objection/application on its merits, the defendant submits that at the time of the roadside breath demand Constable Chakravarthy lacked reasonable grounds to suspect that he had alcohol in his body.

If correct, the approved screening device demand was not authorized by section 254(2) (

b) of the Criminal Code . It would be an unlawful seizure and by definition unreasonable under

section 8 of the Charter .

In terms of remedy, given that the failed approved screening device test led directly to the defendant’s arrest and the seizure of his breath samples for analysis by the approved instrument, it would appear that the defendant would be seeking to have the certificate detailing those results excluded from evidence under section 24(2) of the Charter . [ 16 ] In the alternative, the defendant argues that the Crown should not be permitted to rely on the presumption of identity furnished by subsection 258(1)( c )(ii) to establish that the concentration of alcohol in his blood at the time of testing was the same as at the time of driving.

In so arguing, he submits that the Crown failed to establish that each sample was taken “as soon as practicable” after the time of the alleged offence, which is an essential precondition for engaging the presumption. In that regard, the focus is on the nearly twenty minutes after the defendant’s arrest that were spent at the roadside before leaving for the police division to carry out further breath testing.

According to the defendant, this amounted to an unreasonable delay that should deny the Crown recourse to the statutory presumption. [ 17 ] It is the position of the Crown that having failed to object or to file the required application, the defendant should not be permitted to question the admissibility of the certificate of the qualified technician on Charter grounds. Alternatively, if the Charter application is addressed on its merits, the Crown submits that, in all of the circumstances, Constable Chakravarthy had the required reasonable grounds to suspect the defendant had alcohol in his body.

As a result, the approved screening device demand was lawful and the seizures of the defendant’s breath samples, initially at the roadside for analysis by the approved screening device, and later at the division for analysis by the approved instrument, were each Charter compliant. [ 18 ] The Crown further submits that the breath samples taken for analysis by the approved instrument were not unreasonably

delayed. With respect to the time spent at the roadside, the Crown argues that Constable Chakravarthy adequately explained this period. The time was taken up with important tasks. Further, the officer cited police protocol regarding only transporting prisoners with handcuffs and safety concerns as the reason for delaying the defendant’s transport to the police division until after back up had arrived. The Crown therefore submits that it has discharged its burden of demonstrating that the breath samples were taken “as soon as practicable” after the time of the alleged offence.

As a result, the Crown seeks to rely on the presumption of identity found in section 258(1)( c )(ii). With the benefit of that presumption, it submits that it has proven that the defendant’s blood alcohol level was over the legal limit at the time of driving. IV. Analysis [ 19 ] As noted above, I am required to address three issues in deciding this case. I shall do so in turn. A.

What is the effect of the failure to object or to file a Charter application? [ 20 ] The Court of Appeal has made clear that objections to the admissibility of evidence should either be made before or at the time when the evidence is being proffered; not after the fact. [2] In particular, the Court has explained that objections to the admissibility of evidence on Charter grounds should not be raised after the Crown has closed its case, given concerns that such an approach would occasion unfairness and prejudice the Crown’s ability to properly respond. [3] That said, the Court has also recognized that a trial judge has the discretion to allow counsel to challenge the admissibility of evidence already received where “the interests of justice so warrant”. [4] [ 21 ] Similar concerns operate with respect to the failure to serve and file notice in support of a Charter application as required by this Court’s rules. [5] Such rules exist to ensure the fair, just and expeditious determination of Charter issues and thereby enhance the quality of the administration of justice. [6] The goal is to avoid unfair surprise so that, “both parties have adequate notice of the factual and legal basis for the Charter application.” [7] As a result, the failure to comply with the rules, for example the notice requirement, is not necessarily fatal to a Charter application.

Rather, the key consideration is prejudice. If there is no real prejudice, the inadequate notice should not prevent the Charter application from being considered on its merits. Further, even where there is prejudice, if there is some way of ameliorating it short of refusing to consider the Charter argument then that alternative should be preferred. [8] [ 22 ] In my view, the interests of justice require that the defendant be permitted to pursue his Charter claim despite the failure to file a notice of application or to make a timely objection.

In so concluding, I note these failures stemmed from counsel’s misapprehension as opposed to any apparent effort to gain a tactical advantage. Further, it is important to note that as part of its case the Crown happened to elicit a considerable amount of detailed evidence from Constable Chakravarthy regarding his grounds for making a roadside screening device demand. Given this, in the particular circumstances of this case any prejudice to the Crown is more theoretical than real. As a result, I think the interests of justice are best served by allowing the defendant’s Charter claim to be determined on its merits.

B. Did the officer have the required grounds for a roadside breath demand? [ 23 ] A warrantless search or seizure is presumed to violate

section 8 of the Charter . [9] To displace that presumption the Crown bears the burden of establishing, on a balance of probabilities, that a search or seizure was authorized by law, the law itself is reasonable, and that it was carried out in a reasonable manner. [10] These general principles have equal application to the taking of breath samples in response to a breath demand, which amounts to a “seizure” for

section 8 Charter purposes. [11] [ 24 ] In this case there is no issue with respect to the reasonableness of the relevant statutory provision ( subsection 254(2) ( b )) or the manner in which the breath samples were taken. The dispute is focussed on whether the lawful preconditions for making an approved screening device demand were established. In other words, whether Constable Chakravarthy had the required “reasonable grounds to suspect” that the defendant had alcohol in his body at the time of the roadside demand.

The statutory language thereby imports the reasonable suspicion standard. [ 25 ] Reasonable suspicion means, “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds”. [12] As the Supreme Court of Canada has explained, “reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts” but “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.” [13] According to the Court the standard, “derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny.” [14] In assessing whether or not this threshold is met, a reviewing court must have regard to the “totality of the circumstances”. [15] The assessment, “must be fact-based, flexible, and grounded in common sense and practical, everyday experience”. [16] [ 26 ] It is important to remember that in the context of 254(2)(

b) a peace officer is not required to have reasonable suspicion that a driver is in fact impaired. Rather, the question is simply whether the officer has reasonable grounds to suspect that a driver has some alcohol in his or her body. [17] [ 27 ] Returning to the circumstances of this case, the defendant contends that the circumstances fell short of furnishing the required grounds. His principal argument, in that regard, was that Constable Chakravarthy did not claim to detect the odour of alcohol on his breath. Rather, he simply identified a “faint” odour coming from within the car.

To be sure, the odour of alcohol coming from within a vehicle by itself will likely fall short of furnishing the required grounds for an approved screening device demand. [18] But in circumstances like those in the present case, where a driver is travelling alone, I think the odour of alcohol coming from inside of a car takes on greater significance and may very well be enough to furnish a police officer with the required grounds to make a roadside screening breath demand. [19] In this case, however, there was a fair bit more in terms of supporting grounds. [ 28 ] Constable Chakravarthy also cited the fact that the defendant’s eyes appeared to be watery and that he had difficulty-maintaining eye contact.

In addition, the officer emphasized the defendant’s unusually long pause before responding to the question of whether or not he had had anything to drink that evening. Beyond the factors referenced by the officer, from an objective standpoint, I would also add the time of morning and the fact that the defendant was speeding well above the limit as additional relevant considerations.

[ 29 ] In my view, when the totality of the circumstances are considered (the time of morning, the speeding, the odour of alcohol coming from inside the car of which the defendant was the lone occupant, the defendant’s watery eyes, his inability to maintain eye contact and his long pause when questioned about drinking), there was clearly more than just a reasonable possibility that the defendant had alcohol in his body. I would go so far as to find that the evidence actually served to demonstrate that there was a reasonable probability that the defendant had alcohol in his body at the time.

Accordingly, I have concluded that Constable Chakravarthy had the required grounds to demand a sample of the defendant’s breath for analysis by an approved screening device. This conclusion is quite obviously decisive of the defendant’s

section 8 Charter application, which is hereby dismissed. C. Were the breath samples taken as soon as practicable? [ 30 ] The Crown’s case against the defendant relies on the presumption of identity found in subsection 258(1) (

c) of the Criminal Code .

In order to take advantage of that presumption the Crown must establish beyond a reasonable doubt that the samples of the defendant’s breath were “taken as soon as practicable after the time when the offence was alleged to have been committed”. [20] [ 31 ] The Court of Appeal has explained the “as soon as practicable” requirement. [21] The Court has clarified that this phrase does not mean that the breath samples must be taken as soon as possible. [22] Rather, it simply requires that the tests be “taken within a reasonably prompt time under the circumstances.” [23] The Court has explained that the “touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.” [24] In making this assessment, I am required to consider the whole chain of events, remembering that the Criminal Code permits an outside limit of two hours from the time of the alleged offence to the taking of the first sample. [25] In establishing this requirement the Crown is not required to provide a detailed explanation of what occurred during every minute that the accused was in custody. [26] Rather, the Court of Appeal has instructed that the “as soon as practicable” requirement “must be applied with reason.” [27] [ 32 ] In this case, between the time of driving and the first sample an hour and twenty-five minutes elapsed.

It was an hour and forty- seven minutes before the taking of the second sample was completed. These are not insignificant time periods. Of course, this alone does not mean that the breath tests were not administered as “soon as practicable”. As the Court of Appeal has made clear, the specific reasons for any delay must be considered.

It is only where the evidence casts doubt on the reasonableness of any delays that this essential precondition for the Crown to rely upon the presumption of identity will be called into question. [ 33 ] I have carefully considered the chronology of the events in this case and the reasons provided by way of explanation for the delay in administering the breath tests. In the end, I am not satisfied that the Crown has discharged its burden of demonstrating that the tests were taken as soon as practicable after the time the offence was alleged to have been committed.

In that regard, I am most concerned with the nearly twenty-minutes of delay at the roadside between the defendant’s arrest and when he was finally transported back to the police division. It will be recalled that Constable Chakravarthy provided an explanation for this period of delay. [ 34 ] In his evidence, the officer explained that Peel Regional Police protocol necessitated that he not transport the defendant without first securing his hands with handcuffs.

Quite obviously, it is not my place to second-guess police operational decisions of this nature. [28] In any event, it was not the protocol about transporting prisoners with handcuffs that led to the delay. Rather, it was the decision to await the arrival of another police officer before removing the defendant from the back of the police cruiser and handcuffing him that led directly to this significant period of delay.

In terms of an explanation for it, Constable Chakravarthy cited concerns for his own safety and that of the defendant. [ 35 ] I am of course extremely sympathetic to the dangers faced by police officers, they are invariably called upon to deal with quickly unfolding, fluid and inherently unpredictable situations that can quickly and rather unexpectedly turn violent. Recent events in Alberta provide a stark reminder of the constant dangers faced by police officers.

Such concerns have led the Supreme Court of Canada to develop protective search powers aimed at helping police officers ensure their safety and the safety of the public. [ 36 ] So, for example, Mann established that during a lawful investigative detention a police officer is entitled to pat-down the person detained, but to do so: “the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk”. [29] More recently, in MacDonald , the Court recognized a protective safety search power that stands apart from investigative detention and that can operate whenever a police officer is acting in execution of her duties and has reasonable grounds to believe a person she is dealing with is armed and dangerous. [30] That said, it is important to remember that in recognizing such a power in MacDonald the Court also sounded a cautionary note.

For the majority, LeBel J. explained: … although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police.

Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search ( Mann , at para. 40 ; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter ( see R. v. Tse , 2012 SCC 16 , [2012] 1 S.C.R. 531 , at para. 33 ). As the Court stated in Mann , a search cannot be justified on the basis of a vague concern for safety.

Rather, for a safety search to be lawful, the officer must act on “reasonable and specific inferences drawn from the known facts of the situation” ( Mann , at para. 41 ). [31] [ 37 ] Quite obviously, having lawfully arrested the defendant, Constable Chakravarthy was entitled to conduct much more than a limited safety search. A full search inside pockets would have been entirely justified by the defendant’s arrest. [32] My purpose in referencing the Supreme Court’s decisions in Mann and MacDonald is to make a different point.

Specifically, that although concerns about officer safety may license intrusions upon liberty and privacy interests, in order to do so those concerns must be grounded in the objective circumstances of a particular situation rather than vague and speculative concerns about “officer safety”. [ 38 ] With that backdrop in mind, I return to the reasons for the twenty-minute delay between the defendant’s arrest and the departure from the scene for the police division. In circumstances where a police officer has well-founded safety concerns about a person just

arrested for a drinking and driving related offence, it would no doubt be entirely reasonable to wait at the roadside until back-up arrives to assist with handcuffing and searching before the person arrested is transported to the police division. So, for example, in a situation where the person arrested has a prior record for violence, or is being uncooperative or combative, or is simply behaving erratically, a delay to await the arrival of back-up would undoubtedly be entirely reasonable and not serve to call into question the “as soon as practicable” requirement.

That was not, however, the situation here. [ 39 ] In this case, although there was evidence that Constable Chakravarthy conducted records checks before approaching the defendant’s vehicle, there was no suggestion that anything discovered through these checks provided cause for concern. Further, the evidence clearly established that the defendant was polite and cooperative throughout his dealings with the officer.

In addition, there was also evidence that even before placing the defendant in the rear of the police cruiser Constable Chakravarthy had conducted a protective pat-down search, eliminating any concern that the defendant might be carrying a weapon. In other words, at least from an objective standpoint, there was nothing about the circumstances faced by Constable Chakravarthy that served to justify the safety concerns he cited as the reason for delaying the defendant’s departure from the roadside for nearly twenty minutes to await the arrival of a back-up officer.

To be clear, I am not questioning the veracity of Constable Chakravarthy’s claim that he was motivated by concerns for safety. (In that regard, I note that he has only been a police officer for 3 ½ years, which I think explains his extraordinarily cautious approach.) My point is that where safety concerns have no objective foundation and are premised on little more than creative speculation, they should not serve to excuse a police officer from the statutory directive that breath samples be collected “as soon as practicable after the time when the offence was alleged to have been committed”. [ 40 ] For all of these reasons, I am simply not satisfied that the Crown has established beyond a reasonable doubt an essential precondition for engaging the presumption found in section 258(1) (

c) of the Criminal Code . As a result, the Crown is not entitled to seek the benefit of that presumption. VI. Conclusion [ 41 ] Without the presumption found in section 258(1) ( c ), there is no evidence before the court capable of establishing the defendant’s blood alcohol concentration at the time of driving. The charge against the defendant is therefore dismissed. Released: January 28, 2015 __________________________ Justice James Stribopoulos